Buy law, language and legal determinacy, by brian bix, isbn 9780198260509, published by oxford university press from. The theories of legal indeterminicity and the theory of the relative autonomy of legal interpretation are related in that if law were indeterminate then law would necessarily also be autonomous. It first considers the determinacy and indeterminacy of law, and then looks at h. For others, the law becomes the main ingredient, and language serves as a vehicle for understanding the legal process and the workings of that system. Critical legal histories and law s in determinacy 70 stan. A note on the linguistic indeterminacy in the legal context. Politics and legitimacy introduction in the 1980s, the question of legal determinacy or indeterminacy seemed central to legal philosophy. Dworkin rejected harts claim, maintaining that even in hard cases, the law provided a right answer which determined the result. Dalhousie university libraries journal hosting service. This book discusses the role of language within law, and the role of philosophy of language in. How the language of the constitution allows for differing opinions christina j. This paper was first presented at the ucl colloquium on law and language, ucl, london, 5th july 2011. But beyond this, the language of the law presents a subtle challenge to the american bar, a stimulus to improve our work and our profession by sharpening the product of our minds.
Thank you to all who have contributed to its formation, both before the colloquium and since. Hart saw language as a restricting agent on legal formalism that explains the judicial discretion, 2 the interpretative approach of ronald dworkin falls under. This formulation of the claim of rational indeterminacy has the virtue of being neutral as between in determinacy and under determinacy. It opens up with a brief history and overview of natural law theories. The blackwell guide to the philosophy of law and legal theory. Many circumstances influence the evolution of language. Legal language law school learning aids sturm college. It degenerates into a set of rules to be observed only by lawyers and judges in a game, which they play for their own advantage. In the study of law, language has great importance. Sep 01, 2017 but if the argument for legal determinacy and objectivity fails, perhaps the other side of the indeterminacy problem equationthe relationship between determinacy and legitimacycan be rethought. Bix argues that the major rethinking of the common and common sense views about law that have been proposed by various recent legal theories is unnecessary. Law dictionary search more than 10,000 legal words and phrases for clear definitions written in plain language. Wittgenstein and legal determinacy ora oxford university.
Offers a reconsideration of the role of language in the law, and the way ideas about language have been used and misused in recent legal theory. The book argues that the major rethinking of the common and common sense views about law that have been proposed by various recent legal theorists are unnecessary. Definition0 legal language is the type of language used by lawyersand other legal professionals in the course of theirwork. The problem of legal indeterminacy in contemporary. Legal skeptics have argued against claims of legal justification or certainty on a variety of linguistic and nonlinguistic grounds.
The nature of legal language this material may be used for. Law, language, and legal determinacy oxford scholarship. Law, language, and legal determinacy, university of london lec. Determinacy, objectivity and authority semantic scholar. Legal language law school learning aids sturm college of law. Law, language, and legal determinancy discusses the role of language within law, and the role of philosophy of language in understanding the nature of law.
Discusses one of the central problems in the philosophy of lawthe question of legal determinacy. Legal realism is conventionally understood, in part, to question legal doctrines determinacy and positive law s causal effect on judicial decisions. Law, language, and legal determinacy brian bix oxford. Vagueness in phrases is a more commonplace factor of linguistic. Pdf introduction by humby t, kotze lj, du plessis aa and. Can the law constrain the results reached by adjudicators in legal disputes. The chapter first explains the relationship of language and law in answering the questions of legal determinacy and three approaches are presented.
Yet while the status and influence of delaware corporate law is beyond dispute, its efficiency is not. Pdf the problems of indeterminacy and autonomy of law. Harts theory of law was positivism, which entailed the existence of some legal indeterminacy. How the language of the constitution allows for differing opinions. Law, language, and legal determinacy clarendon paperbacks brian bix this book discusses one of the central problems in the philosophy of lawthe question of legal determinacy. The problem of legal indeterminacy in contemporary legal. By brian bix clarendon press, oxford, 1993, 240 pp. Law, language, and legal determinacy clarendon paperbacks. Some members of the critical legal studies movement primarily legal academics in the united states argued that the answer to this question is no. Civil law is one of the areas of private law in the legal system. The canadian journal of law and technology cjlt is an established legal journal dedicated to providing coverage of legal issues relating to law and technology from both canadian and international perspectives. In a denselypacked, yet subtle book, comprehensively entitled law, language, and legal determinacy, university of london lecturer brian bix warns legal theorists of all levels that although language may represent the sole method of presenting law, that does not mean that language is the sole, or even the most important, factor in. Technical vocabulary, unusual and archaic words, impersonal constructions, use of modal like shall, multiple negation, long and complex sentences, and poor.
The main characteristics of legal english english is the predominant of languageinternational business, and has a significant role as a legal language within the legal english is european union. Current legal issues volume 15 michael freeman, fiona smith current legal issues, like its sister volume current legal problems now available in journal format, is based upon an annual colloquium held at university college london. The indeterminacy debate in legal theory can be summed up as follows. The concept of determinacy and international law law when detached from the other social sciences rapidly becomes rigid and loses contact with the people it is intended to serve. Introduction in the world of corporate law, delaware is king.
Legal interpretation and the philosophy of language oxford. University of groningen essays on autonomy, legality and. As language is the primary means of encoding legal concepts, translating legal terms is almost an indispensable part of teaching legal english to law students, lawyers, and other legal professionals. While the act does not cover regulations, three separate executive orders emphasize the need for plain language. Law, language, and legal determinacy oxford university press, 1993 translated into chinese law press, 2007 chapter 2 reproduced in wittgenstein and law dennis patterson, ed. The coexistence of english and scots legal systems b.
Weismann derived the term from his approach to wittgensteins philosophy, and argued on the general vagueness of the language. Jes bjarup is professor in jurisprudence, juridiska institutione, stockholms universitet, stockholm, sweden. Legal interpretation and the philosophy of language. One consequence of the existence of easy cases along with hard ones is the alleged marginalization of the skeptical challenges of legal realism. Bix argues that the major rethinking of the common and common sense views about law that have been proposed by various recent legal theories is. The purpose of these lecture note is to assist you in acquiring the basic way to think about civil law, and to serve as an introduction to civil law through an overview of the legal institution stated in the corpus of civil law as outlined in. Introduction by humby t, kotze lj, du plessis aa and letsaolo d in humby t et al eds introduction to law and legal skills in south africa 110. No lawyer could fail to learn many facts of surprising interest. This book discusses one of the central problems in the philosophy of lawthe question of legal determinacy. Considerations to legal theory 1990 3 canadian journal of law and jurisprudence 107. It is not easy to summarize what this book is about, except to say that it is an exploration of a variety of themes and a variety of authors on the role of language in the practice of law, the role of theories of language in legal theory, and how all this bears on the problems of legal determinacy. For still other researchers, the major interest resides in the disciplines of psychology, sociology, or anthropology, and language as it operates within the legal system functions as a. For hart and dworkin, the question of legal determinacy was answered by a theory of law.
The english language can be said to have begun around 450 a. An introduction to general jurisprudence and philosophy of law. The law requires that federal agencies use clear government communication that the public can understand and use. Law and language stanford encyclopedia of philosophy. The nature and history of the english legal language. This article focuses on recent works on natural law theory, particularly those that concentrate on discussing positive law. Items marked with are also on the public law field reading list. It is a story of anglosaxon mercenaries, latinspeaking missionaries, scandinavian raiders, and norman invaders, all of whom left their mark not only on england, but on the language of its law. Determinacy, objectivity, and authority chicago unbound. It is therefore not surprising that lawyers, judges, and legal commentators have sought whatever assistance they could find from other fields which deal with the meaning and interpretation of words. In general, a legal language is a formalized language based on logic rules which differs from the ordinary natural language in vocabulary, morphology, syntax, and semantics, as well as other linguistic features, aimed to achieve consistency, validity, completeness and soundness, while keeping the benefits of a humanlike language. Transparency and determinacy in common law adjudication. As with the writings of wittgenstein, who serves as bixs philosophical inspiration, it is not always abundantly clear what the discussions all add up to.
The plain writing act of 2010 was signed on october, 2010. An easytounderstand guide to the language of law from the dictionary experts at merriamwebster. In the jurisprudential literature, much attention has recently been given to the role of language within law, with various writers asserting that certain theories of meaning or theories of interpretation offer new insights into the nature of law. Kraus introduction since this is a conference on law and morality, and the topic of this panel is theories of contract law, i thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. A note on the linguistic in determinacy in the legal context. This paper discusses linguistic vagueness in the context of a semantically restricted domain of legal language. Scholars who rely on wittgensteinian or deconstructionist doubts about the determinacy of language include. Law, language, and legal determinacy oxford university press, 1993.
This book discusses the role of language within law, and the role of philosophy of language in understanding the nature of law. He is author of skandinavischer realismus, hagerstrom, lundstedt. The nature and history of english legal language b. The modern legal theorists who identify themselves with the natural law tradition seem to have objectives and approaches distinctly different from those classically associated with natural law.
He is a member of the american law institute, and is a member of the bars of the. Law is guidance through language, whether the language of statutes, judicial decisions, constitutional provisions, contracts, or wills. He began his book laws empire dworkin 1986b by contending that legal theorists like hart cannot explain theoretical disagreement in legal practice, because they think that lawyers share uncontroversial tests tests. Visiting professor of law 201220, columbia law school. Law, language, and legal determinacy clarendon paperbacks brian bix on. Hart argued on judicial interpretation between formalism and rulescepticism that legal rules have an applicable meaning in accordance with the depending situation, but the problem lies within the language vagueness in interpreted application. Some would rather refer to this area as linguistics and law while others prefer the even. Law, language, and legal determinacy by professor brian bix, 9780198260509, available at book depository with free delivery worldwide.
This book discusses one of the central problems in the philosophy of law the question of legal determinacy. It is home to more than half of all existing public corporations1 and to almost 90% of those corporations that have gone public in recent years. Nevertheless, it is possible to distil from bixs somewhat unfocused discussions the following central themes. The law is in determinate insofar as any outcome can be justified on the basis of the class. Critique and comment australasian legal information.
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